Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.

Previous administrations arbitrarily have limited expedited removal proceedings to aliens at the border and aliens who entered without inspection and were apprehended no more than 100 miles from the border after spending less than 14 days in the country.

But Section 235(b)(1)(A)(iii)(ll) of the Immigration and Nationality Act (INA) authorizes expedited removal proceedings for any alien “who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.”

President Trump can use expedited removal proceedings to deport millions of noncriminal aliens without hearings before an immigration judge or the right to appeal removal orders to the Board of Immigration Appeals.

The only way to stop him is to find a way to work with him on a comprehensive immigration reform bill that includes a legalization program. And time is running out.

I agree with Nolan that given the huge backlogs in the U.S. Immigration Courts, the Administration will use every device at its disposal to avoid the Immigration Courts and completely eliminate due process protections for as many individuals as possible. Moreover, as I have pointed out in a recent blog, to date the Article III Courts have been willing to turn a blind eye to the rather obvious due process and statutory issues involved in expedited removal. See http://wp.me/p8eeJm-IG.

To state the obvious: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum” is meaningless without a fair opportunity to be heard on the asylum application before an impartial adjudicator, with a meaningful opportunity to present evidence, and represented by counsel of one’s choice. And, the idea that individuals who have spent months in detention in the U.S. aren’t entitled to “due process” in connection with their asylum applications (which are “life or death” applications) is facially absurd.

Yeah, I know that the Third Circuit in Castro v. DHS spent the whole decision on a turgidly opaque discussion of jurisdiction and and “suspension of habeas.” Surprising how folks living in the “ivory tower” with lifetime job security can sometimes drain all of the humanity out of “real life” tragedies.

But, frankly, in four decades of being a “highly interested observer” of immigration litigation, I’ve never seen an Article III Court, including the Supremes, be deterred from running over supposed statutory limitations on judicial review when motivated to do so. Perhaps it will take some Federal Judge’s nanny, maid, gardener, driver, handyman, neighbor, fellow church member, student, or in-law being swept up in the new “DHS dragnet” to “motivate” the courts here.

In the meantime, as pointed out to me by Nolan in a different conversation, there is some hope for due process in the Third Circuit’s dictum in Castro. In “footnote 13,” the court actually indicates that there might be a “constitutional break point” for review of expedited removal:

“Of course, even though our construction of § 1252 means that courts in the future will almost certainly lack statutory jurisdiction to review claims that the government has committed even more egregious violations of the expedited removal statute than those alleged by Petitioners, this does not necessarily mean that all aliens wishing to raise such claims will be without a remedy. For instance, consider the case of an alien who has been living continuously for several years in the United States before being ordered removed under § 1225(b)(1). Even though the statute would prevent him from seeking judicial review of a claim, say, that he was never granted a credible fear interview, under our analysis of the Suspension Clause below, the statute could very well be unconstitutional as applied to him (though we by no means undertake to so hold in this opinion). Suffice it to say, at least some of the arguably troubling implications of our reading of § 1252 may be tempered by the Constitution’s requirement that habeas review be available in some circumstances and for some people.”

I suspect that the Administration eventually will push expedited removal and credible fear denials to the point where there will be some meaningful judicial review. But, lots of folks rights are likely to be trampled upon before we reach that point.

Nolan’s suggestion for a bipartisan legislative solution certainly seems reasonable and highly appropriate from the viewpoint of both sides. The Administration is about to invest lots of resources and credibility in a “war to deport or intimidate just about everybody” that it is likely to lose in the long run. But, advocates are likely to be bleeding resources and losing individual battles for some time before the tide eventually turns, if it ever does. Anything that depends on litigation as the solution has many risks and unpredictable outcomes that might leave both sides unsatisfied with the results.

Sadly, nobody in the Administration seems interested in solving this issue. The policy appears to be driven by Attorney General Jeff Sessions, a lifelong opponent of immigration reform who seldom if ever has a kind word to say about any immigrant, legal or undocumented.

Secretary Kelly has become “Sessions’s Parrot,” apparently devoid of any original or constructive thoughts on the subject of immigration. In particular, his recent “put up or shut up” outburst directed at Congressional Democrats who sought some meaningful oversight and clarification of his enforcement policies did not seem to be an entree for better dialogue.

Although there almost certainly is a majority of Democrats and Republicans in favor of reasonable immigration reform, which the majority of the country would also like to see, leadership of both parties seems fairly discombobulated. There seems to be “zero interest” in putting together a legislative coalition consisting of Democrats and a minority of Republicans to get anything done. And, even if such a coalition were to coalesce, President Trump likely would veto any constructive result in the area of immigration.

As I’ve pointed out before, there are a number of reasons why folks don’t always act in their best interests or the best interests of the country. But, I appreciate Nolan’s efforts to promote “thinking beyond conflict.” I want to think that it can come to fruition.